IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-3352

_____________________

LARRY HUDSON,

Petitioner-Appellant,

versus

JOHN P. WHITLEY, Warden,

Louisiana State Penitentiary, Et Al.,

Respondents-Appellees.

_______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_______________________________________________________

(December 10, 1992)

Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.

PER CURIAM:

Larry Hudson is serving a life sentence in the Louisiana State

Penitentiary as a result of his December 2, 1967, conviction for

first degree murder. P ro se and in forma pauperis

, he appeals the

district court's dismissal for abuse of the writ of this successive

federal habeas corpus petition. S ee Rule 9(b) of the Rules

Governing § 2254 cases. Maintaining his innocence throughout,

Hudson contends that his due process righ ts under B rady v.

Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), were

violated almost twenty-five years ago by the state's suppression of

crucial evidence favorable to the defense--namely evidence that the

state's only eyewitness, and linchpin of its case, originally2

identified someone else as a participant in the armed robbery and

murder, and that person had been arrested.

Contrar y to the district court, we conclude that Hudson had

good cause for failure to make his claim earlier. We remand to the

district court for its determination as to prejudice resulting from

his being unable to raise the critical issue earlier. Moreover, we

hold the district court should reconsider its alternative decision

dismissing Hudson's petition on the merits because of later case

developments. We remand for these purposes.

I. FACTS AND PRIOR PROCEEDINGS

In the early morning hours of May 15, 1967, Oscar Meeks, the

manager of a New Orleans service station, was held at gunpoint in

an attempted robbery. Frank Wilson, his assistant and the only

eyewitness, testified that three men entered the small, but welllighted office of the station where Meeks and Wilson were working.

One of the three men inquired as to the cost of repairing a flat

ti re. When Meeks answered, one of the trio later identified by

Wilson as Hudson, drew a gun and demanded money. Meeks resisted,

and in the melee that followed, Meeks was pushed through the office

door and shot. Wilson testified that at this point he ran from the

office through a side door. He went about a block and a half but

then returned to the station. When he arrived, two of the robbers

had fled, and Meeks, wounded, was holding the other robber, later1 The only other state witness testified that he was walking

in the vicinity and heard some gunshots. However, he did not get

a clear view of the two men who fled the scene.

2 In his motions for bill of particulars, Hudson specifically

inquired:

6. How many persons were arrested in

connection with the crime charged herein; and

give their names and addresses.

7. Of the persons who were arrested for this

crime, any released after investigation? If

so, whom?

8. Were any stat ements or confessions,

inculpatory or exculpatory, written or oral,

given to the police by any co-defendants that

implicated the defendant, Larry Hudson? If

so, by whom and when?

9. Disclose herewith any and all evidence

held by the police or the district attorney's

office which may be favorable to the

defendant.

3 The Louisiana Supreme Court ultimately held that the bill

of particulars motions were too broad, seeking state's evidence

which in essence was an attempt at pretrial discovery which, with

3 identified as John Duplessis, at gunpoint. Meeks subsequently died

from the gunshot wound. 1

In Hudson's motions filed prior to his 1967 first degree

murder trial, he sought disclosure of, among other things, the

number an d identities of any persons arrested in connection with

the crime as well as the identity of any such persons released

after the investigation. 2 Further, Hudson filed a "Motion for

Oyer" in which he sought "copies of police report of investigation

made in this case." The state refused to furnish any information

in response to Hudson's motions for bill of particulars as well as

his "Motion for Oyer." 3the exception of written confessions, generally was not permissible

in Louisiana. S tate v. Hudson

, 253 La. 992, 221 So.2d 484, 491

(1969), cert. dismissed

, 403 U.S. 949, 91 S.Ct. 2273, 29 L.Ed.2d

855 (1971). With regard to the "Motion for Oyer," the Court

concurred with the state, citing to the well-defined exception to

the Public Records Act in effect at the time, which exempted police

records from its provisions, as well as to Louisiana jurisprudence

which established as privileged all evidence relating to a pending

criminal trial in the possession of the district attorney or the

police. Id. at 492.

4 At trial, the state presented only Wilson's testimony to

identify Hudson as the man who shot Meeks during the attempted

armed robbery. Wilson's alleged identification of Hudson was

contested at trial. During trial, Wilson testified that he had

identified Hudson at pretrial lineup held five days after the

crime. Yet, Officer Clement DeSala testified he was present at the

lineup but that Wilson did not make an identification at that time.

The state failed to disclose to Hudson prior to trial that Wilson

had been unable to pick him out of a live lineup.

Perhaps in an effort to assuage the anticipated damage, the

district attorney, a day before the trial, conducted a photographic

spread before Wilson. The state displayed two photographs to

Wilson, one was of Hudson and the other was of the co-defendant who

was tried with Hudson. There were no photographs of anyone not

implicated in the robbery. At trial, Wilson testified that when

asked if he recognized the men in the photographs, he replied that

he did. Further, Wilson made an in-court identification of Hudson.

Ultimately, Hudson was convicted of first degree murder by a

Louisiana jury and sentenced to death. His death sentence was

later commute d to life imprisonment. In 1969, the Louisiana4 In its memorandum opinion, the district court set out the

history of Hudson's federal habeas petitions. The state papers

whi ch accompany this case do not contain Hudson's federal habeas

proceedings and Hudson, pro se

, does not provide a detailed history

of his previous federa l filings in his current habeas petition.

Hudson do es, however, adopt the district court's history in his

appellate brief. Further, the state generally agrees that Hudson

has not raised the claim now made in his petition in a previous

petition.

5 Supreme Court affirmed Hudson's conviction. State v. Hudson , 253

La. 992, 221 So. 2d 484, 492 (1969), cert. dismissed

, 403 U.S. 949,

91 S.Ct. 2273, 29 L.Ed.2d 855 (1971). Consequently, Hudson began

his attempts at vindication in the state courts. On at least three

occasions, Louisiana courts denied Hudson habeas relief. S ee,

e.g.

, State ex rel. Hudson v. Henderson

, 262 La. 314, 263 So.2d 48

(1972); State ex rel. Hudson v. Henderson

, 294 So.2d 545 (La.

1974); State ex rel. Hudson v. Maggio , 337 So.2d 872 (La. 1976).

After properly ex hausting his state remedies, Hudson sought

relief f rom the federal courts. 4 In his first federal habeas

petition, Hudson claimed that he was serving an illegal sentence.

The district court dismissed that action without prejudice on

November 30, 1973. Hudson subsequently filed a notice of appeal

and a request for a certificate of probable cause which was denied.

On March 25, 1974, his appeal was dismissed. In his second habeas

petition, dated November 26, 1974, Hudson raised grounds of illegal

jury composition and denial of the right to confront witnesses. On

April 16, 1975, a United States Magistrate recommended dismissal.

S oon thereafter, the district court denied the relief sought; no

appeal was taken.6

On March 24, 1977, Hudson filed his third federal petition for

habeas corpus. He contended the inappropriate use of a

photographic lineup, the prosecutor's kn o wing use of perjured

testimony, the improper denial by the trial court of a motion to

sever, the improper admission of certain eviden ce, and the

ineffective assistance of counsel. On December 29, 1977, the

district court adopted the magistrat e's recommendation that the

petition be dismissed with prejudice. This Court affirmed the

district court's dismissal. S ee Hudson v. Blackburn

, 601 F.2d 785

(5th Cir. 1979), c ert. denied

, 444 U.S. 1086, 100 S.Ct. 1046, 62

L.Ed.2d 772 (1980).

We agreed with Hudson's asse rtion that the photographic

identification procedure employed was impermissibly suggestive

(where a day before trial Wilson was presented with only two

photographs in a photographic spread). We found, however, that

under the "totality of circumstances" present in the case, "there

was no substantial likelihood of misidentification." 601 F.2d at

788. Further, we also found that the conflict in testimony

regarding the lineup (in which Wilson failed to identify Hudson and

then testified otherwise) had a direct bearing on Wilson's

credibility, and was therefore, material evidence. We concluded,

however, that the error was harmless because the jury had been

adequately presented with the conflicting information. I d

. at 789.

In 1984, the Louisiana Legislature amended its Public Records

Act, La. Rev. Stat. Ann. § 44:3 A(4), to provide that the initial

report of the investigating police officer or officers is a public5 Although there are two relevant police reports, the

evidence that Hudson asserts is exculpatory is detailed in the

first report prepared by Sgt. Larry Vigurie. According to the

report, on May 15, 1967, the same day as the aborted robbery, a photographic lineup identification by eyewitness Frank Wilson named

Larry Jones as one of the three robbers. This lineup was prompted

by John Du plessis' statement to the police during the initial

investigation that one of the participants was a male by the name

of Larry Jones. According to the report, the police collected

several pho tographs of "Larry Joneses" which were then shown to

Wilson who identified one of them as one of the suspects. The

Larry Jones identified was subsequently arrested. At the physical

lineup held the following day, however, Wilson was un able to

identify any of the men as a participant--not even Larry Jones.

Larry Jon es was released and no mention was made of this lineup

during any of the proceedings. The Vigurie report further states

that after Meeks' death on May 17, Duplessis recanted his earlier

identification of a Larry Jones and implicated Hudson instead.

7 record and subject to disclosure regardless of its invest igative

content. Subsequently, the effect of the amendment was suspended

by legislative resolution until August 31, 1986. S ee State v.

McDaniel

, 504 So.2d 160, 161 (La. Ct. App. 1987). Pursuant to this

amendment, Hudson obtained copies of the police reports which

showed that Wilson, whose testimony constituted virtually the sole

evidence used to convict Hudson, initially picked a man named Larry

Jones from a photograph display as a participant in the attempted

armed robbery. The report also disclosed that Wilson was unable to

identify Larry Jones as one of the robbers after a physical lineup

was held

. 5 Subsequently, Hudson once again initiated state postconviction proceedings. His state application for relief ended

with the Louisiana Supreme Court's habeas petition denial on May

18, 1990. S tate ex rel. Hudson v. Butler

, 561 So.2d 112 (La.

1990).6 In B rady

, the Court held that "the suppre ssion by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment, irrespective of the good faith or bad faith of

the prosecution." To establish a B rady violation, th e defendant

must prove the following: (1) that the prosecution suppressed

evidence, (2) that the suppressed evidence was favorable to the

accused, and (3) that the suppressed evidence was material either

to guilt or to punishment. U nited States v. E llender , 947 F.2d

748, 756 (5th Cir. 1991).

8 On January 10, 1991, Hudson filed this, his fourth, federal

habeas petition asserting that his due process rights under Brady

v . Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d

215 (1963), 6 were violated by the state's suppression of the

evidence favorable to the defense contained in the police reports.

The district court dismissed Hudson's petition as successive under

Rule 9(b). Employing the abuse of the writ test applicable at the

time of its decision, the district court found that Hudson failed

to establish by a preponderance of the evidence that he had not

abused the writ. S ee Brown v. Butler

, 815 F.2d 1054, 1057 (5th

C ir. 1987) ("[o]nce the 9(b), abuse of the writ, claim has been

raised either by the government or sua sponte, the burden then

shifts to the petitioner to answer the al legation and prove by a

preponderance of evidence that he has not abused the writ"); see

also Jones v. Estelle

, 722 F.2d 159, 164 (5th Cir. 1983) (en banc),

cert. denied

, 466 U.S. 976, 104 S.Ct. 2356, 80 L.Ed.2d 829 (1984).

The court found that "Hudson [had] ample opportun ity

commencing with his first attempt at habeas corpus relief in 1973

to present to this Court the State's failure to provide allegedly

exculpatory information pursuant to the holding in Brady ."7 The test for materiality is whether there is a "reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different. A

`reasonable probability' is a probability sufficient to undermine

confidence in the outcome." B agley

, 473 U.S. at 682, 105 S.Ct. at

3383.

9 According to the court, even "[h]is subsequent obtainment of the

police report pursuant to a legislative amendment [could not] serve

a s the basis for the granting of relief in light of the numerous

opportunities provided to him, even without knowledge of this

alleged exculpatory information, to present the underlying issue of

nondisclosure." Alternatively, the court held that the claim

lacked merit. Specifically, the district court concluded that

although the information regarding Wilson's prior identification of

a suspect in a photographic lineup should have been disclosed to

the defense since it would have had a bearing on Wilson's

credibility and his ability to identify Hudson, the inform ation

failed to overcome the materiality test enunciated in United States

v. Bagley

, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), 7

and, thus would not have changed the outcome of the trial.

To support its reasoning, the district court looked to our

holding in Hudson's third federal habeas petition. Although we

found that the prosecution was under an affirmative duty to

disclose the controversy surrounding the pretrial identification,

we held that this breach of prose cutorial obligation did not

require reversal. B lackburn

, 601 F.2 d at 789. Relying upon our

finding on the prior nondisclosure issue in the third petition, the8 Rule 9(b) provides that:

A second or succeeding petition may be

dismissed if the judge finds that it fails to

allege new or different grounds for relief and

the prior determination was on the merits, or

if new and different grounds are alleged, the

judge finds that the failure of the petitioner

to assert those grounds in a prior p etition

constituted an abuse of the writ.

10 district court held that reversal was unjustified on the evidence

in this petition.

Thus, the district court dismissed Hudson's fourth petition

with prejudice, holding that it was barred under Ru le 9(b) 8 and

alternatively, that his claims were meritless. Hudson was granted

a certificate of probable cause and appeals.

II. DISCUSSION

A. Basic Issues

Hudson contends that the district court abused its discretion

in dismissing his petition. He asserts that, contrary to the

court 's determination, he could not have brought the B rady claim

earlier since he was unaware of Wilson's identification of and the

arrest of Lar ry Jones until he obtained a copy of the police

rep orts in 1988 in connection with a state post-conviction

proceeding.

The district court's decision to dismiss Hudson's petition

under Rule 9(b) lies within its sound discretion, and will be

reversed only for an abuse of that discretion. S chouest v.11

Whitley

, 927 F.2d 205, 207 (5th Cir. 1991) (superseding Schouest v.

Smith , 914 F.2d 713 (5th Cir. 1990)).

In 1991, the Supreme Court decided McCleskey v. Zant

, 111

S.Ct. 1454, 113 L.Ed.2d 517 (1991), on abuse of the writ which goes

substantially beyond simply requiring proof of a persuasive reason

for earlier failure to raise the issue. In McCleskey , the Court

held that the cause and prejudice test applicable to cases of

procedural default enunciated in Wainwright v. Sykes

, 433 U.S. 72,

97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is applied also "to determine

if there has been an abuse of the writ through inexcusable

n eglect." M cCleskey

, 111 S.Ct. at 1470. Claims raised for the

first time on a second or subsequent habeas petition will be

dismissed as an abuse unless the petitioner can show cause for the

failure to raise the claim in an earlier habeas petition, but the

petitioner is also permitted to show prejudice resulting in a lack

of fundamental fairness in the trial. Nonetheless, even if the

petitioner cannot satisfy the cause and prejudice standard, courts

ma y still entertain a serial petition to prevent a "fundamental

m iscarriage of justice." The "miscarriage of justice" exception

applies only to "extraordinary instances when a const itutional

violation probably has caused the conviction of one innocent of the

crime." Id

.

McCleskey is applied retroactively. See Russell v. Collins

,

944 F.2d 202, 205 (5th Cir.) (per curiam) (finding that "[a]s [the

McCleskey ] standard appli es here only to procedure in the habeas

r eview, retroactive application of the standard is not at iss ue"9 Other Courts that have addressed this question have made

comparable determinations as to retroactivity. See, e.g.

, Harris

v. Vasquez

, 949 F.2d 1497, 1512 (9th Cir. 1 990) (finding that it

did "not believe the expression of the abuse of the writ standard

announced in McCleskey creates a new rule precluding its

application to pending cases"), cert. denied

,

__ U.S.

__, 112 S.Ct.

1275, 117 L.Ed.2d 501 (1992); Andrews v. Deland

, 943 F.2d 1162,

1172 n.7 (10th Cir. 1991) (stating that it would "apply McCleskey

to this case on collateral review, because M cCleskey involves a

clarification of a procedural rule, not a change i n substantive

law. It may therefore apply retroactively.")

, c ert. denied

,

__ U.S. __, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992); United States v.

MacDonald

, 778 F.Supp. 1342, 1357 (E.D.N.C. 1991) (holding that

McCleskey represe nts a "refinement of existing law rather than a

statement of new law" meriting retroactive appli cation), a ff'd

, 1992 WL 115662 (4th Cir. June 2, 1992) (No. 91-6613). B ut see

Harris

, 949 F.2d at 1541-43 (Reinhardt, J., dissenting) (stating

that "[t]he majority's procedural ruling regarding the

retroactivity of [ McCleskey] is just plain wrong.

. . . [A] proper application of [ Teague 's] criteria would preclude the retroactive

application of [ McCleskey ]").

12 and, thus applying McCleskey ), cert. denied

,

__ U.S.

__, 112 S.Ct.

30, 115 L.Ed.2d 1112 (1991); Woods v. Whitley , 933 F.2d 321, 323

(5th Cir. 1991) (stating that "[a]lthough this case was decided by

the d istrict court prior to the issuance of M cCleskey

, the

procedure the court followed and the result it reached comport with

that case"). 9 We apply the cause and prejudice standard in the

evaluation of this petition by Hudson.

B. Failure to Make Claim Earlier

The state must satisfy its initial burden of pleading an abuse

of the writ. This burden is satisfied if the state notes the

petitioner's prior writ history with clarity and particularity,

identifies claims which appear for the first time in the later

petition, and alleges abuse by the petitioner. To disprove the

state's claim of abuse, the petitioner must show cause for failing1 0 At times, the state appears to mix an abuse of the writ

issue, which involves a claim raised for the first time in a

subsequent pe tition, with a successive petition issue, which

involves a claim which has been raised and reached on the merits in

an earlier habeas petition. See Sawyer v. Whitley , 945 F.2d 812,

815-16 (5th Cir. 1991), aff'd

, 1992 WL 135565 (U.S. June 22, 1992)

(No. 91-6382). By way of example, the state refers to Hudson's

acknowledgement that a similar issue to that on appeal was taken to

the United States Supreme Court on direct appeal years ago though

the police reports which supported the suppression claim were, at

that juncture, unavailable. However, the state then sets out the

McCleskey standard which articulates a test for an abuse of the

writ assertion, and focuses exclusively on an abuse of the writ

theory. Further, the district court dismissed Hudson's contention

as an abuse of the writ. Consequently, we address Hudson's claim

as raising solely an alleged abuse of habeas issue.

13 to raise the claim earlier. To establish cause, the petitioner

must show that some "external impediment, whether it be government

interference or the reasonable unavailability of the factual basis

for the claim, must have prevented petitioner from raising the

claim." In essence, "the question is whether petitioner possessed,

or by reasonable means could have obtained, a sufficient basis to

allege a claim in the first petition and pursue the matter through

the habeas process." McCleskey , 111 S.Ct. at 1472.

The state presents several contentions to bolster its

assertion that Hudson has failed to show justification under

McCleskey for his fai lure to present the claim earlier. 1 0 Its

primary contention is that Hudson fails to establish cause because

the passage of the 1984 amendment to La. Rev. Stat. Ann. § 44:3 was

irrelevant. The state asserts that the amendment makes available

to a criminal defendant only the initial police reports whereas the

information that Hudson used to f ormulate his B rady claim is

contained in supplementary reports. Further, the state contends14

that the 1984 amendment to Louisiana's Public Records law

notwithstanding, Hudson could have "pressed this claim in his first

federal habeas petition filed in 1973." According to the state,

federal constitutional principles as well as Louisiana

jurisprudence would have supported disclosure of any Brady evidence

irrespective of the amendment.

We respond to the state's arguments on three grounds. First,

and most critically, taking the state's police report labeling

argument to its logical progression, the reporting officer or

officers could simply def eat the purpose of the statute by

including only selected, non-probative information in the initial

repor t. The remainder, more substantive and perhaps exculpatory

information, could then be included in subsequent supplemental

reports. S ee, e.g.

, State v. Shropshire

, 471 So.2d 707, 708-09

(La. 1985) (the New Orleans Police Department's entitling its first

report by the officers investigating a complaint an "incident

report" rather than an "initial report" constitutes mere labeling

and does not remove the report from the statute's scope).

Second, the a mended public records provision defines an

initial report as including, among ot her things, "[t]he name and

identification of each person charged with or arrested for the

alleged offense." La. Rev. Stat. Ann. § 44:3(A)(4)(b)(ii)

(emphasis added). Thus, under the literal wording of the statute,

Hudson was entitled to the informat ion which supports his claim

since he, in essence, sought the identification of a person

arrested for the alleged offense.1 1 As to the state's contention that federal and state

constitutional jurisprudence would have supported disclosure of any

Brady evidence irrespective of the Public Records law, and thus he

could have pressed this claim in his first habeas petition filed in

1973, we first note, as set out above, Hudson's repeated futile

attempts fo r access to exculpatory information before the trial

through his motions for bill of particulars and his "Motion for

Oyer." Further, the state asserts that the Louisiana trial court

had the power to order the production of such evidence. But Hudson

made many unsuccessful pleas to the sta te court. Finally, as to

the specific claim that Wilson's initial identification of another

suspect and his subsequent arrest could have been ferreted out by

Hudson runs into Hudso n's poignant contention that he "is not

clairvoyant."

15 Nonetheless, we find that Hudson was entitled to the

information regardless of the police report. The state contended

t hat the amendment is irrelevant. We agree but for a wholly

different reason. The state asks us to ignore the pivotal fact

that it suppressed Brady evidence despite repeated attempts by

petitioner to obtain such evidence. Regardless of the statute, the

state was obligated to disclose this evidence favorable to the

defense. 11

We conclude that Hudson has successfully met McCleskey 's cause

requirement. Regardless of the diligence and reasonableness Hudson

utilized in his prior habeas peti tions, "external impediment[s]"

existed. McCleskey , 111 S.Ct. at 1472. Crucial factors external

to his defense, "the reasonable unavailability of the factual basis

for the claim" as well as "government interference" (by the state's

nonfeasance), prevented him from discovering the claim he now

raises.16 C. Showing of Prejudice

The state never reached the prejudice inquiry, M cCleskey 's

s econd requirement. According to the state, Hudson lacked cause

for its failure to raise the nondisclosure claim in his three prior

federal habeas petitions. So under M cCleskey

, it contends that we

need not consider whether Hudson would be prejudiced by his

inability to raise the alleged disclosure violation at such a late

date. Since we find that Hudson has demonstrated sufficient cause,

we must remand to the district court to consider prejudice.

D. Merits

The d istrict court alternatively ruled that absent the

applicability of Rule 9(b), Hudso n's grounds for relief were

meritless. In its determination, the district court conceded that

the information concerning Wilson's prior identification of Larry

Jones should have been disclosed since it bor e on Wilson's

credibility a nd ability to identify Hudson. Nonetheless, it

concluded that the information was not sufficiently material under

Bagley , and would not have changed the trial's outcome.

To establish that evidence falls within the purview of Brady

,

a petitioner must establish that the evidence was (1) suppressed,

(2) favorable, and (3) material. C ordova v. Collins

, 953 F.2d 167,

171 (5th Cir. 1992). B rady 's third factor, materiality, may now be

impacted by the heightened awareness of th e prejudice issue

emphasized by McCleskey

. M cCleskey is proce dural only, but a

finding of prejudice under it makes it at least more difficult to17

find lack of materiality under Bagley , although we recognize that

the two evaluations are not identical. Inasmuch as the district

court did not have the benefit of McCles key when it ruled, we

remand its decision on the merits as well.

III. CONCLUSION

We conclude that the district court erred in its determination

that Hudson's habeas petition was barred under Rule 9(b) for

failure to raise the critical issue at an earlier time. We remand

for the court to decide whether the requisite prejudice was shown

to justify granting the writ as against the Rule 9(b) assertion.

Further, we remand for the court to reconsider its alternative

dismissal of Hudson's petition on the merits.

REMANDED.

JERRE S. WILLIAMS, Circuit Judge, dissenting in part:

I can see no justification at all to remand this case to the

district court. It is true that the court did not consider the

issue of prejudice. But on this record the evidence concerning the

prejudicial nature of the faulty identification of the accused is

overwhelming. The government's case relied virtually entirely upon

the identification.The majority of the Court remands the case for a consideration

of the issue of prejudice as it applies to the abuse of the writ

claim and also for the district court to reconsider its alternative

determination denying the writ. I evaluate those issues in my

conclusion that there should be no remand.

First, the issue of prejudice must be considered as it relates

to abuse of the w rit for failure to make the claim at an earlier

time. Of course, I agree with the Court's conclusion that there

was good cause for failur e to have raised the issue earlier. By

way of dissent, I then go on to show why I feel there is no need to

remand on this issue of prejudice.

Although Wainwright v. Sykes did not give "precise content" to

the definition of prejudice, 433 U. S. at 91, 97 S.Ct. at 2508,

later cases have interpreted the petitioner 's burden of proving

actual prejudice as showing "`not merely that the errors at . . .

trial created a possibility of prejudice, but that they worked to

his actual and substantial disadvantage, infecting his entire trial

with error of constitutional dimensions.'" M urray v. Carrier

, 477

U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986) (quoting

United States v. Frady

, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71

L.Ed.2d 816 (1982)) (emphases in original). Stated in another way,

"[s]uch a showing of pervasive actual prejudice c an hardly be

thought to co nstitute anything other than a showing that the

prisoner was denied `fundamental fairness' at trial." M urray

, 477

U.S. at 494, 106 S.Ct. at 2648. S ee also Sawyer v. Whitley

, 945

F.2d 812, 816 (5th Cir. 1991) ("[p]rejudice requires a showing of19

actual prejudice amounting to a denial of fundamental fairness"),

aff'd

, U.S. , 112 S.Ct. 2514, 120 L.Ed.2d 269.

I must conclude that Hudson has also satisfied the prejudice

element. Wilson's identification and his credibility were

virtually the state's entire case against Hudson. In addition to

being unable to identify Hudson in a lineup, the state's only

eyewitness initially picked someone else as the third participant

from a photographic display, and this third person wa s arrested.

Wilson was then unable to identify the man in a live lineup. These

facts presented to the jury as the heart of the state's case would

have cast highly significant doubt upon the reliability of Wilson's

identification. Further, the suggestive photographic

identification merely intensified the serious consequences of the

state's nondisclosure. I conclude that the "fundamental fairness"

requisite obvious ly must fall in the face of significant

uncertainty.

The district court then alternatively ruled that a bsent the

applicability of Rule 9(b), Hudson's grounds for reli ef were

m eritless. The Court remands for reconsideration of the merits.

I would resolve the question.

In its determination, t he district court conceded that the

information concerning Wilson's prior identification of Larry Jones

should have been disclosed since it bore on Wilson's credibility

and ability to identify Hudson. Nonetheless, it concluded that the

information was not suffi ciently material under U nited States v.20

Bag ley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), to

have changed the outcome.

In maki ng its assertion, the district court appears to have

relied primarily on this Court's reasoning in our earlier decision

in Hudson v. Blackburn

, 601 F.2d 785 (5th Cir. 1979), cert. denied

,

444 U.S. 1086, 100 S.Ct. 1046, 62 L.Ed.2d 772 (1979). As suggested

above, in that case we addressed the state's failure to disclose to

Hudson prior to trial that Wilson had been unable to pick him out

of a live pretrial lineup. 601 F.2d at 789. This information was

in direct conflict wi th Wilson's trial testimony that he picked

Hudson out of the lineup. But we held that the error was harmless

since the jury was made a ware of the conflict when an officer

pre sent during the lineup testified that Wilson had failed to

choose Hudson. While we found established trial errors harmless in

Hudson's third habeas petition, our conclusion as to their harmless

quality was absent the closely related critical inform ation now

disclosed in this proceeding. Further, the B agley standard of

materiality was not in existence at the time this Court adjudicated

his third federal habeas petition.

The Brady violation asserted on this appeal was not disclosed

to the jury directly or indirectly in any way. In B rady v.

Maryland

, 373 U.S. 82, 83 S.Ct. 1194, 10 L.Ed .2d 215 (1963), the

Supreme Court found that "the suppression by the prosecution of

evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution."1 2 Hudson claims he did not obtain a copy of the police

reports until 1988.

21 373 U.S. at 87, 8 3 S.Ct. at 1196-97. This is true as to

impeachment evidence as well as exculpatory evidence. B agley

, 473

U.S. at 676, 105 S.Ct. at 3380. To establish that evidence falls

within the purview of Brady , a petitioner must establish that the

evidence was (1) suppressed, (2) favorable, and (3) material.

Cordova v. Collins

, 953 F.2d 167, 171 (5th Cir. 1992). "Suppressed

evidence is mater ial `if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have bee n different.'" I d. (quoting Bagley

, 473

U.S. at 682, 105 S.Ct. at 3383).

Information contained in police reports may constitute Brady

material. See, e.g., Williams v. Whitley , 940 F.2d 132, 133 (5th

Cir. 1991); Lindsey v. King , 769 F.2d 1034, 1036 (5th Cir. 1985).

As to Brady 's first element, the evidence was clearly suppressed.

As a result of the Louisiana law, Hudson did not have access to the

police reports at issue at least until late 1986. 1 2 Further,

satisfying Brady 's second criterion, there is no question that the

evidence is favorable.

As to Brady 's third factor, the assessment of prejudice on the

merits, that factor may now be i mpacted to some extent by the

heightened awareness of the prejudice issue emphasized by the

McCleskey decision. M cCleskey is procedural only, but a finding of

prejudice under McCleskey makes it at least somewhat more difficult

to find a lack of materiality under Bagley

. The two evaluations22

clearly are not identical. If the withheld evidence at issue is

only one part of a substantial and strong body of proof against an

accused, the l evel of prejudice justifying examining the merits

would not necessarily be prejudicial to the level o f justifying

granting the writ. But here the withheld evidence was the critical

part of the government's case, because the case was almost entirely

grounded on this identity testimony. It follows that the prejudice

required in finding materiality on the merits hinges on little more

than the requisite prejudice justifying consideration of the

merits.

I must conclude that the government's case was seriously

undermined by the withholding of evid ence critical to

identification of the accused by the key witness. I find it

inescapable that the evidence withheld was highly material and its

unavailability to the defendant casts clear and controlling doubt

upon confidence in the outcome of the trial.

In view of the overriding importa nce of the faulty

identification testimony there is no valid reason at all to remand

the case to the district court. The record is complete. There is

no genuine issue left to decide. Prejudice is certain and the

merits are clear.

It appears to me to be a totally unjustifiable misuse of

judicial resources to send this case back instead of deciding it.

A serious waste of time and money are involved. I cannot conceive

on the record with which we are presented that in the future any

appellate court could uphold any decision other than that this23

con viction must be set aside as fatally flawed. Because of the

serious misbehavior of the po lice, Hudson has amply demonstrated

that he has not yet had a fair trial. The writ should be granted

now.